Excerpt:appeal, second - landlord and tenant--status of tenant--finding of fact--mistake as to area of tenancy, whether error of law. - .....out of a suit for arrears of rent. the sole question which arises is whether the plaintiffs are tenure holders or raiyats. the plaintiffs claim to be raiyats and the important point is this, that if they are raiyats and the defendants are under-raiyats, the plaintiffs are entitled under the provisions of section 66, bengal tenancy act, to a decree for ejectment subject to the provisions of the section in addition to a decree for arrears of rent. the case for the defendants is that the plaintiffs are tenure-holders.2. both the courts below have found that the plaintiffs are in fact tenure-holders, and this is a finding with which in second appeal we ought not to interfere except on the ground of some clear mistake on point of law. the trial court, having first found that the plaintiffs.....

Judgment:

1. This appeal arises out of a suit for arrears of rent. The sole question which arises is whether the plaintiffs are tenure holders or raiyats. The plaintiffs claim to be raiyats and the important point is this, that if they are raiyats and the defendants are under-raiyats, the plaintiffs are entitled under the provisions of Section 66, Bengal Tenancy Act, to a decree for ejectment subject to the provisions of the section in addition to a decree for arrears of rent. The case for the defendants is that the plaintiffs are tenure-holders.

2. Both the Courts below have found that the plaintiffs are in fact tenure-holders, and this is a finding with which in second appeal we ought not to interfere except on the ground of some clear mistake on point of law. The trial Court, having first found that the plaintiffs were tenure-holders, dismissed the suit on the footing that the land in respect of which the rent is claimed was not the subject of a separate tenancy but formed part of a larger area, all included in one tenancy, and that the plaintiffs were not entitled to split up the rent. Upon that question, however, the learned District Judge in the lower Appellate Court has taken a different view. He has found that there are two tenancies held by the defendants under the plaintiffs, one at a rent of Rs. 65-140, that is the tenancy to which the present suit relates, and the other at a rent of Rs. 70 2 annas, that these two tenancies have not been consolidated and that the plaintiffs are entitled to sue for rent in respect of the tenancy in suit as a separate holding. His finding on the question whether the plaintiffs are tenure-holders is in these words: 'The facts and circumstances of the case are, in my opinion, quite clear to show that the status of the plaintiffs is that of a tenure-holder. To begin with there is the presumption that they are tenure holders, the area of their jote being more than 100 bighas. The only two documents, which have been filed to rebutt this presumption are Exhibit 4 and Exhibit 2--a kobala and a kabuliyat. These documents are of the years 1275 and 1274 B.S. respectively, long before the Bengal Tenancy Act came into force and of a time when the word raiyat was very loosely used in documents. On the other hand the plaintiffs in a rent suit brought by them in the year 1902 described themselves as tenure-holders (vide Exhibit E). Plaintiff adduced some oral evidence also to show that Ashmatulla, the original holder of the jama, himself cultivated the lands. But this evidence comes from a witness who deposed to facts which according to him had taken place when he was a mere boy. I hold, therefore, that the presumption that the plaintiffs are tenure-holders and not occupancy raiyats has not been rebutted and my finding, therefore, is that they are tenure-holders.'

3. The first contention of the learned Pleader for the appellants is that the presumption to which the District Judge refers does not apply because the area of the holding is not in fact more than 100 bighas. It appears that the District Judge, in stating the area to be more than 100 bighas, had in mind the plaint Exhibit E by which the plaintiffs claimed rent from the defendants for an area of 136 bighas. It is said that that statement referred to the area of the two tenancies taken together. If so, that point ought to have been threshed out in the lower Appellate Court, which is the final Court of fact. A mistake as to the area can hardly be described as a mistake of law. Moreover if the plaint referred to the total area of the two tenancies that obviously bore on the other question whether or not the two tenancies have been consolidated. Again, the learned District Judge does not proceed entirely on the basis of the area of the holding. He refers to the description which the plaintiffs themselves applied to it in the plaint referred to, and it cannot be said that there was no evidence on the record to support the conclusion arrived at. The learned Pleader has invited our attention to the two documents of 1274 and 1275 which the learned District Judge mentions. The defendants were not parties to those documents. They are merely evidence in the case which the Judge has considered; whether he has weighed them rightly or wrongly, he was entitled to form his own opinion. It may be that the plaintiffs are in possession of two holdings each of which comprises an area of less then 100 bighas. There is no doubt, however, that the area of the two holdings taken together is more than 100 bighas. The kabuliyat executed by the predecessor of the defendants is dated the 29th Chaitra 1297. There is nothing in that document conclusive to show that the defendants are under raiyats and not raiyats. In fact the use of the word chukani rather supports the view which has been taken in the Court below. The effect of the word has not been discussed by the District Judge and it is not desirable that we should attempt in this case to define its meaning. But we may refer to the decision of this Court in the case of Jogendra Nath Goswami v. Chandra Kumar Mazumdar 24 Ind. Cas. 193 : 42 C. 28.

4. In all the circumstances I am not satisfied that we should be justified in disturbing the decree which has been made in the Court below. In ray opinion, this appeal should be dismissed with costs.